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So Constitutional rights follow a sine wave pattern. Up, down, up, down, up, down, forever in motion.
Does the First Amendment do this? What about whatever amendment underlies Roe v. Wade? Or Brown v. Board?
Can a document BE a "Constitution" that evolves and devolves as the public (or Media) stomach churns?
That's the essence of the English parliamentary system. America REJECTED it. Did American's fight the Revolutionary War as an employment scheme? Did the framers sweat through a Philadelphia Summer to create a parchment of Play-Doh?
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Professor Joseph Olson, J.D., LL.M. o- 651-523-2142 Hamline University School of Law (MS-D2037) f- 651-523-2236 St. Paul, MN 55113-1235 c- 612-865-7956 [email protected] http://law.hamline.edu/constitutional_law/joseph_olson.html >>> "George A. Mocsary" <[email protected]> 6/25/2012 4:59 PM >>> I've not read it yet, but here it is: http://ssrn.com/abstract=2084805. Our Non-Originalist Right to Bear Arms: How Public Opinion Has Shaped the Second AmendmentRobert LeiderYale University - Law School May 6, 2012 Abstract: This paper develops a robust model of how nineteenth-century courts actually adjudicated the content of the right to bear arms under federal and state constitutional guarantees. My argument is that nineteenth-century courts were not “originalists” or “textualists” about the Second Amendment: they did not look to how James Madison viewed the right in 1789 or how Americans in 1791 commonly understood the Second Amendment. Instead, I argue that most nineteenth-century courts shaped the right to bear arms around the contemporary popular understanding of the right. In other words, as the popular consensus about the appropriate scope of the right to bear arms changed over time, courts evolved their jurisprudence on the right to bear arms to reflect this popular shift. Courts only struck down weapon control laws when those laws fell too far outside the contemporary popularly accepted scope of the right. After examining the nineteenth-century jurisprudence, I turn my attention to the federal jurisprudence in the twentieth century. I offer a revisionist account for why the federal courts adopted the collective rights reading of the Second Amendment after United States v. Miller. I argue that Miller entrenched the nineteenth-century rule that the Second Amendment protected only military arms. Because the military was transitioning to automatic weapons, which were widely considered inappropriate for civilian use, Miller left federal courts unable to adapt the right to bear arms around its contemporary popular consensus. Consequently, courts adopted the “collective rights view” — not because they necessarily thought that it was the correct interpretation of the Second Amendment (though a few of them did) — but because they were unwilling to entrench an individual right to bear arms that was too extreme by contemporary standards. In fact, until the Fifth Circuit shook matters up in 2001, the courts of appeals generally disposed of Second Amendment claims with little or no serious analysis. I conclude by arguing that District of Columbia v. Heller was a return — not to originalism — but to the nineteenth-century evolving right to bear arms. The right to bear arms articulated in Heller reflects the popular conception of the right in the twenty-first century: the right of law-abiding citizens to have handguns (but not military arms) in their homes for personal protection. Unlike Miller, Heller empowered the federal courts to shape the Second Amendment around contemporary notions of reasonableness. In so doing, I argue that Heller continues a tradition established long ago. When scholars attempt to predict how future courts will handle novel Second Amendment claims, they should look towards contemporary popular beliefs about the right to bear arms — not to how the Framers viewed the right. __._,_.___
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